Religious Occasions Should Be Last Priority In Water Allocation: Bombay HC [Read Judgment]

At the highest, the use of water for Kumbh Mela and for other religious purposes will be covered by the last category, said the Bench

The Bombay High Court has ruled that water requirements for Kumbh Mela to be held at Nashik and other religious purposes will be met only after addressing the priority level laid down in Clause 4 of the Maharashtra State Water Policy.

The court also addressed a host of issues related to water distribution in Maharashtra and Marathwada regions, and the implementation of legislations in this regard.

The court ruled that the state is bound by legislation and cannot release the water from the reservoirs for religious ceremonies or religious objects without the regulatory authority deciding the issue of priority of equitable distribution of water.

As per the Maharashtra State Water Policy, the areas are categorized as per precedence from ‘a’ to ‘e’, starting from (a) domestic use for drinking, cooling, hygiene and sanitation needs, including livestock; (b) industrial,   commercial   use   and   agro¬-based industrial use; (c) agriculture and hydropower; (d) environment and recreation uses; (e) all other uses.

In the context, the court stated, “At the highest, the use of water for Kumbh Mela and for other religious purposes will be covered by the last category ‘e’”.

Therefore, according to the policy, if sufficient water cannot be allocated for usage in categories (a) to (d) in that order of preference, there cannot be any allocation of water for Kumbh Mela and other religious purposes.

The court further added that in case of scarcity or hydrological drought, the state is not entitled to release water from reservoir for such purposes without adjudication being made by the Regulatory Authority under Clause (c) of Section 11 of the said Act of 2005.

While adjudicating a group of writ petitions and public interest litigations on issues concerning equitable distribution of water and disputes therein, Justice AS Oka and Justice GS Kulkarni drew a host of conclusions and issued time-bound stipulations to the state.

The issues revolved around water supply to various parts of Western Maharashtra and Marathwada regions.

The issue related to release of water from upstream reservoirs in Godavari river sub-basin for the benefit of downstream Jayakwadi dam was also addressed.

The court made the following important finding and conclusions apart from the issue of water allocation for Kumbh Mela:

1. Water flowing   through rivers and water stored in the reservoir/dams is the property of the state. The doctrine of Public Trust will apply and, hence, the public at large is beneficiary with no preferential treatment to any entity except in accordance with law. As per Article 39(b) of the Constitution, the state is responsible for equitable distribution of river water and water stored in the reservoirs/dams.


2. The right of water supply under the block system under the Bombay Canal Rules, 1934, is no longer available.


3. The order dated 17 October, 2015, passed by the Irrigation Corporation has worked itself out as the same can be now implemented.


4. The provisions of Clause (c) of Section 11 and Subsection (6) of Section 12 of the said Act are constitutionally valid.


5. Clause (c) of Sub¬section (6) of Section 12 of the said Act of 2005, is not an independent provision and the directions to exercise power independently cannot be issued. However, the principles set out shall be taken into consideration by the regulatory authority while fixing the quota at project level. However, as doctrine of Public Trust is applicable, the state is under an obligation to make equitable distribution of water available in the Godavari sub-¬basin


6. New irrigation projects in the upstream area of Jayakwadi dam cannot be approved. However, no judgment was given on the legality of the said government decision.


7. All projects, which were approved and the work of which was commenced prior to 6th September, 2004, shall be completed by the state government as expeditiously as possible. This will include the Bham and Waki project.


8. In addition to the schemes undertaken to divert water flowing from Sahayadri Hills towards Arabian Sea, the state government is under an obligation to consider the proposal of diverting the water from West-flowing rivers to the Godavari and Tapi sub-¬basin as recommended in the project report of August 2001.


9. The state government shall be under an obligation to implement all the provisions of the said Act of 2005 and the second Act of 2005, including the delineation, formation of water users' association within a time-bound schedule.


10. The strategy of release of water from upstream dams can be applied only in case of scarcity (hydrological drought) and that the principles laid down in the said order are subject to the periodical revision or review by the regulatory authority.


11. The state government will have to consider prayers for providing direct gravity pipelines from upstream to downstream reservoirs.

The court passed the following orders:

1. Clause (c) of Section 11 and Sub-section (6) of Section 12 of the Maharashtra Water Resource Regulatory Authority Act, 2005 (the said Act of 2005), are constitutionally valid.


2. The orders   dated   19th September, 2014; 18th November, 2014; and 10th March, 2015, passed by the regulatory authority are confirmed.


3. Except the direction regarding the block system, the other directions issued by the regulatory authority in the impugned orders shall be implemented by the state.


4. The state government is ordered to effectively implement the provisions of the Maharashtra Management of Irrigation System by Farmers Act, 2005, especially Chapters II and III by   carrying out delineation of the areas and by establishing water users' associations as provided therein. The state government shall file an affidavit within three months from today providing a time schedule for   implementing the provisions and completing implementation in the next two years.


5. The state government shall determine the sectoral allocation in terms of Subsection (1) of Section 16A within six months from today to enable the regulatory authority decide the criteria for the distribution of entitlements as provided in clause (a) of Section 11. Special reference to Sections 16A, clauses (a) and (d) of Section 11 and Subsection (6) of Section 12 must be given in the affidavit.

Implementation to be carried out in next two years:

1. The State Water Board to prepare a draft Integrated State Water Plan within four months from today.


2. The State Water Council to approve the said Integrated State Water Plan with such modifications as may be necessary, within four months.


3. The state government to constitute a selection committee under the Act within two months.


4. The state government to ensure that the regulatory authority is constituted as per Section 4 of the said Act within 6 months from the date of order.


5. The state government to take decision within 6 months from now on diversion of water from West-flowing rivers to the Godavari and Tapi sub-basins and consider   the   suggestion   to provide   direct   gravity   pipelines   from   upstream reservoirs. The   state   government   shall implement all the 23 gravity flow diversion schemes within one year from today.


6. As long as the government’s decision is in force, permission shall not be granted for new irrigation projects upstream of Jayakwadi dam. However, Bham and other irrigation projects, the work of which was commenced prior to 6th September, 2004, shall be completed by the state government as expeditiously as possible. An affidavit shall be submitted within 3 months setting out a timeline for completion of the projects.


7. The state shall take a policy decision on the issue of carrying out the exercise of review of storage capacity of all the reservoirs and undertaking hydrology of the Godavari sub-¬basin within six months.


8. The state   government   shall   be   bound   by   the priorities   listed   in   Clause   4.0   of   the   Maharashtra State Water Policy of July 2003, for release of water for religious purposes.


9. We direct the state government to formulate State Water Resources Plan as per the Maharashtra State Water Policy of July 2003 within six weeks from today.


10. It will be open for all parties to make a representation to the state government for the exercise of power under Section 23 of the said Act of 2005. If such representations are made, the state government shall decide the same within two months from today.

Read the Judgment here.